Hindu married to non-Hindu can't get divorce under Hindu Marriage Act: Bombay high court

The Bombay high court observed that the appellant herself has stated that the respondent was not a Hindu at the time of marriage or thereafter.

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MUMBAI: The Bombay high court has held that a Hindu married to a non-Hindu in accordance with Hindu rituals cannot seek divorce under the Hindu Marriage Act.

Accordingly, a bench headed by Justice VK Tahilramani upheld a family court order which rejected a petition filed by Niranjani Roshan Rao, a Hindu, seeking divorce from husband Roshan Pinto on the ground that he was a Christian at the time of marriage and was professing the same religion till today.

As the family court rejected her petition, she moved the high court, which, on December 24, rejected her appeal and upheld the lower court order.

"We are of the view that an order passed by the learned judge of the family court is perfectly legal and calls for no interference in exercise of appellate jurisdiction," said the bench while dismissing the appeal.

The appellant had filed the petition in family court seeking a decree of nullity of marriage and alternatively claimed divorce on the grounds of cruelty. She said, on January 13, 1999, she was married to respondent as per Hindu rituals. At the time of marriage, she was a Hindu while the respondent was a Christian.

After their marriage, they continued to profess their respective religions. Even at the time of filing of the petition, they continue to practice and follow their respective religions.

The appellant-wife argued that their marriage was null and void as it was in contravention of essential condition of valid marriage provided under section 5 of the Hindu Marriage Act, i.e. both the partners should be Hindus at the time of marriage.

The family court rejected the petition in exercise of powers under Order 7 Rule 11 of CPC, as the petition did not disclose any triable cause of action.

In other words, the family court said the petitioner had no right to file such a petition under the Hindu Marriage Act and as such cannot seek any relief. Both were not Hindus at the time of marriage and hence do not fulfill the conditions laid down under the act.

The high court observed that the appellant herself has stated that the respondent was not a Hindu at the time of marriage or thereafter.

"If this condition is not fulfilled and there was no contravention of provisions under Section 5 of the Hindu Marriage Act, the family court was right in saying that she had no right to file such a petition", the bench said.

Moreover, provisions of Hindu Marriage Act can be applied in cases when both the spouses were Hindus and their marriage is performed as per Hindu rites and rituals, the judges said.

It is also an essential condition under the act that at the time of filing a petition for divorce, both the spouses were Hindus by religion, ruled the bench.